DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO
PANEL: Carly Gilchrist, RPN Chairperson Neil Hillier, RPN Member Marnie MacDougall Public Member Lalitha Poonasamy Public Member Michael Schroder, NP Member
BETWEEN:
COLLEGE OF NURSES OF ONTARIO ) EMILY LAWRENCE for ) College of Nurses of Ontario
- and - ) DIKE EBUZO ) GRANT FERGUSON for Registration No. AA812103 ) Dike Ebuzo ) CHRISTOPHER WIRTH ) Independent Legal Counsel ) Heard: November 4, 2021
DECISION AND REASONS
This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) of the College of Nurses of Ontario (the “College”) on November 4, 2021, via videoconference.
Publication Ban
College Counsel brought a motion pursuant to s.45(3) of the Health Professions Procedural Code of the Nursing Act, 1991, for an order preventing public disclosure and banning publication or broadcasting of the name of the patient, or any information that could disclose the identity of the patient referred to orally or in any documents presented in the Discipline hearing of Dike Ebuzo.
The Panel considered the submissions of the Parties and decided that there be an order preventing public disclosure and banning publication or broadcasting of the name of the patient, or any information that could disclose the identity of the patient referred to orally or in any documents presented in the Discipline hearing of Dike Ebuzo.
The Allegations
The allegations against Dike Ebuzo (the “Member”) as stated in the Notice of Hearing dated August 24, 2021 are as follows:
IT IS ALLEGED THAT:
- You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that, while employed as a Registered Practical Nurse at Markham Stouffville Hospital in Markham, Ontario (the “Hospital”), you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession in that:
(a) on or about May 21, 2016, you failed to engage in appropriate de-escalation of Patient 1;
(b) on or about May 21, 2016, you used improper techniques during a physical restraint of Patient 1 when you:
i) moved Patient 1 in a manner which resulted in Patient 1 hitting his head and/or face; and/or
ii) placed your knee on Patient 1’s back; and/or
(c) on or about May 21, 2016, you touched Patient 1’s head using an open palm in a tapping or smacking motion five or six times; and/or
- You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(7) of Ontario Regulation 799/93, in that while employed as a Registered Practical Nurse at the Hospital, you verbally, physically or emotionally abused a client as follows:
(a) on or about May 21, 2016, you used an improper technique during a physical restraint of Patient 1 when you placed your knee on Patient 1’s back; and/or
(b) on or about May 21, 2016, you touched Patient 1’s head using an open palm in a tapping or smacking motion five or six times; and/or
- You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that, while employed as a Registered Practical Nurse at the Hospital, you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, in that:
(a) on or about May 21, 2016, you failed to engage in appropriate de-escalation of Patient 1;
(b) on or about May 21, 2016, you used improper techniques during a physical restraint of Patient 1 when you:
i) moved Patient 1 in a manner which resulted in Patient 1 hitting his head and/or face; and/or
ii) placed your knee on Patient 1’s back; and/or
(c) on or about May 21, 2016, you touched Patient 1’s head using an open palm in a tapping or smacking motion five or six times.
Member’s Plea
The Member admitted the allegations set out in paragraphs 1(a), (b)(i), (ii), (c), 2(a), (b), 3(a), (b)(i), (ii) and (c) in the Notice of Hearing. The Panel received a written plea inquiry which was signed by the Member. The Panel also conducted an oral plea inquiry and was satisfied that the Member’s admission was voluntary, informed and unequivocal.
Agreed Statement of Facts
College Counsel and the Member’s Counsel advised the Panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts, which as amended reads, unedited, as follows:
THE MEMBER
Dike Ebuzo (the “Member”) obtained a diploma in nursing from Seneca College in 2010.
The Member registered with the College of Nurses of Ontario (“CNO”) as a Registered Practical Nurse (“RPN”) on November 8, 2011.
The Member worked at the Markham Stouffville Hospital (the “Hospital”) from 2013 to June 3, 2016, at which time his employment was terminated.
PRIOR HISTORY
- The Member has no prior disciplinary findings with CNO.
THE FACILITY
The Hospital is located in Markham, Ontario.
The Hospital’s Mental Health Unit (the “Unit”) is a 33-bed psychiatric ward.
Within the Unit, there is also a Psychiatric Intensive Care Unit (“PICU”) with a maximum capacity of 8 patients and 3 nurses assigned to the area.
Most of the patients in the PICU are on “graduated bed” comparable to a step-down unit.
Nurses work in all areas of the Unit, including the PICU.
If RPNs are assigned to the PICU, an RN would oversee the area.
The Member worked as a part-time staff nurse on the Unit since 2014 until the termination of his employment.
THE PATIENT
On May 21, 2016, the Member was assigned to the Unit during his shift, which was scheduled from 0730 to 1930 hours.
Patient 1 was admitted to the Unit involuntarily in the night of May 20/21, 2016 at 0117.
He was 22 years at the time of his admission.
Patient 1 was brought to the Emergency Department of the Hospital by his Aunt and cousin.
Patient 1 had recently been discharged from another facility where he had been admitted for one or two weeks and received a diagnosis of bipolar depression with psychosis.
He was located in the PICU as a step-down patient, with Unit privileges to walk about the Unit.
Patient 1 was subject to continuous observation at 15-minute intervals.
The Member assumed care for Patient 1 at the beginning of his shift at 0730 on May 21, 2016.
After receiving Patient 1 at the nursing station, the Member walked with Patient 1 back to his room to assist in settling Patient 1 as he was observed by the Member to be agitated. Once in the room, Patient 1 confided in the Member and disclosed details about his family relationships and sense of hopelessness.
If the Member were to testify, he would state that he and Patient 1 had established a therapeutic rapport.
INCIDENT RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT
May 21, 2016: Events Preceding the Incident
Patient 1 was visited by his Aunt during the early afternoon on May 21, 2016.
Patient 1’s Aunt brought a bag with Patient 1’s personal belongings to Patient 1 when she attended the Unit. While visiting with his Aunt in the dining room, Patient 1 sorted through the items in the bag brought to him by his Aunt.
While in the dining room with his Aunt, Patient 1 selected clothing from the bag to wear. He put on a pair of shoes from the bag. The shoes had laces.
Patients that are on step-down may have limited clothing: shirt, pants (no belt), sweater (no strings) underwear, socks, and slippers (with no shoelaces). Patient belongings are limited to a few changes of clothing and personal items that are considered safe and are to be labeled and kept in the lockers in the nursing station. All other belongings must be returned home with family/supports.
In the Unit (including PICU/Step Down), the admitting nurse is required to search the patient’s belongings, with a second nurse as necessary. Items brought in for patients by visitors are searched for dangerous articles.
The Member was also in the dining room. The Member immediately told Patient 1 to remove his shoes. Patient 1 removed the shoes and returned them to the bag.
Patient 1 left the dining room and donned the clothes he had selected, and returned to his Aunt in the dining room. He removed the shoes from the bag and put them on his feet.
Over the next fifteen minutes, Patient 1 entered and exited the dining room several times, and took his shoes on and off several times.
As of 1333, the Member left the dining room and Patient 1 and his Aunt remained there, with the bag of items on the floor and Patient 1 wearing the shoes.
Patient 1’s Aunt left the Unit at 1409. She left the bag of clothing at the Unit.
The Member noted Patient 1’s agitation and PRNs provided in a chart entry at 1618. If the Member were to testify, he would state that he asked the Patient during this interaction to remove his shoes, which he did not document.
Patient 1 had the shoes from approximately 1330, and for the remainder of the Member’s shift until approximately 1932.
May 21, 2016: The Incident
At 1933, Security at the Hospital received a call for assistance with a different patient in Room 7 of the PICU.
The Member was at the nursing station for the shift change at 1930 and Patient 1 was in the dining room nearby, when the Member asked Patient 1 to remove his shoes.
While attending Room 7, two security officers heard a commotion from the dining room area.
The two security officers moved to the dining room in response to a request from the Member for assistance.
When the security officers arrived at the dining room, the Member was observed to be standing over Patient 1, while Patient 1 was seated.
The Member spoke to Patient 1 for approximately 15 seconds, before physically moving to attempt to pull Patient 1’s shoe off his foot.
The Member stood close to Patient 1 and shook his finger very close to Patient 1’s face.
The Member yelled at Patient 1 to “obey” the Member, or words to similar effect.
Several nursing and security staff entered and exited the room at various points during the interaction with Patient 1 in the dining room. At one point, Patient 1 was surrounded by staff, including the Member, while seated on a stool at a table in the corner of the room.
From this position, a staff member removed one of Patient 1’s shoes and threw it aside.
Security and nursing staff moved Patient 1 out of the corner of the room so that they would have room to handcuff him.
Patient 1 struggled while being moved. Two security officers had control of Patient 1’s torso while a third security officer removed Patient 1’s legs from underneath the stool on which he was seated, in an effort to secure Patient 1 on the ground.
The Member then struggled with Patient 1’s legs and hips causing Security staff to lose balance, as Patient 1 went down to the ground, bumping his head on the floor in the process.
While Patient 1 was on the floor and Security staff were attempting to handcuff him, the Member placed his knee in the centre of Patient 1’s back and close to his neck, for several seconds.
[ ], RPN, attended at that point and placed her hand between Patient 1’s head and the floor.
Security staff told the Member to remove his knee. He did not respond until physically prompted to do so. The Member moved his knee when one of the members of the Security staff pushed the Member’s leg.
When Patient 1 was on the ground, and was non-combative and no longer resistant, the Member used his open palm to touch the top of Patient 1’s head five or six times with a degree of force beyond a light tap and less than a smack across the face.
If the Member were to testify, he would state that the “taps” or “pats” on Patient 1’s head were to reassure Patient 1 and not to harm him.
Patient 1 was then placed in four-point restraints by multiple staff.
Video footage maintained by the Hospital captured the above sequence of events in the dining room, without audio.
After the incident, Patient 1 returned to his room and commented to nursing staff that he did not feel safe with the Member and was fearful of him.
If the Member were to testify, he would say that Patient 1 later apologized to him for the incident and tried to make amends, which the Member accepted.
The Member made the following entry on Patient 1’s chart at 1953, following the incident:
Towards the end of the shift. Patient family gave him a pair of shoes with robe. Writer told him to remove it with encouragement and explain to him the rule and regulation of the unit, but he refuse and states he will nerve [sic] bring it out unless the family comes the next day to take it. Writer try to remove the show [sic] with help of security. Patient became agitated and attack writer and security staff. Patient was placed on four point restraints with help of security.
- Chart entries for Patient 1 on May 22 and 23, 2016, reflect that he had facial pain and tenderness on the right side of his forehead and neck. No fractures were identified in x-rays.
Hospital Policies
- The Hospital’s Restraint Minimization policy states, in part, that:
[The Hospital] will deliver high-quality patient care that will maximize patient safety and that complies with the Restraint Minimization Act (2001). As such, staff will consider the use of a physical, chemical, or environmental restraint to manage a patient’s behaviour only as a last resort.
Members of the interprofessional health care team will:
Support a patient to manage their behaviour by using all applicable strategies and interventions prior to the consideration of using any kind of restraint.
Use the least restrictive form of restraint for the shortest duration possible.
[Emphasis in original]
When there is no imminent risk of harm to self or others, members of the interprofessional team are required to initiate and evaluate alternatives to restraint use for all identified patients using “CLEA(R) Strategies”, prioritizing non-restraint interventions and considering a restraint as a last resort.
Appendix A of the Restraint Minimization policy identifies CLEA(R) Strategies that support a patient to manage their behaviour and minimize risk of restraint use. These include reorientation, de-escalation, and clear explanations of the expectations for their behaviour.
CNO STANDARDS
CNO’s Professional Standards provides that each nurse is accountable to the public and responsible for ensuring her or his practice and conduct meets legislative requirements and the standards of practice of the profession. A nurse demonstrates this standard by providing, facilitating, advocating, and promoting the best possible care for patients.
CNO’s Professional Standards further provides, in relation to the Relationships standard, that each nurse establishes and maintains respectful, collaborative, therapeutic and professional relationships and a nurse demonstrates this standard by demonstrating respect and empathy for, and interest in patients.
CNO’s Therapeutic Nurse-Client Relationship Standard (“TNCR Standard”) places the responsibility for establishing and maintaining the therapeutic nurse-patient relationship on the nurse. The TNCR Standard further provides that the relationship is based on trust, respect, empathy, and professional intimacy, and requires the appropriate use of power inherent in the care provider’s role.
The TNCR Standard provides that nurses use a wide range of effective communication strategies and interpersonal skills to appropriately establish, maintain, re-establish, and terminate the nurse-patient relationship. A nurse meets the standard by:
a. being aware of her/his verbal and non-verbal communication style and how [patients] might perceive it;
b. modifying communication style, as necessary, to meet the needs of the [patient]; and
c. recognizing that all behaviour has meaning and seeking to understand the cause of a [patient’s] unusual comment, attitude, or behaviour.
- The TNCR Standard also requires nurses to protect the patient from harm by ensuring that abuse is prevented or stopped and reported. With respect to protecting a patient from abuse, a nurse demonstrates having met the standard by:
a. not engaging in behaviours toward a [patient] that may be perceived by the [patient] and/or others to be violent, threatening or intending to inflict physical harm; and
b. not exhibiting physical, verbal, and non-verbal behaviours toward a [patient] that demonstrate disrespect for the client and/or are perceived by the [patient] and/or others as abusive.
- In addition, the TNCR Standard provides examples of abusive behaviours. Verbal and emotional abuse includes, but is not limited to, intimidation including threatening gestures/actions and insensitivity to the patient’s preferences. Physical abuse includes, but is not limited to, pushing, using force, and handling a patient in a rough manner.
ADMISSIONS OF PROFESSIONAL MISCONDUCT
The Member acknowledges that he had an opportunity to address with Patient 1 that he was not permitted to wear shoes with laces between 1400 and the end of his shift, and that he failed to do so.
The Member admits and acknowledges that he was required to, and should have, identified, and implemented de-escalation strategies applicable to non-emergency circumstances during the course of his shift and at shift change.
The Member admits and acknowledges that he failed to engage in appropriate de-escalation of Patient 1. He admits and acknowledges that he breached the standards of practice regarding de-escalation when, at shift change, he approached Patient 1 in a verbally aggressive manner, while physically invading his personal space, and making remarks of a threatening nature (per paragraphs 39 to 41).
The Member also admits and acknowledges that he breached the standards of practice when he failed to apply proper techniques during the physical restraint of Patient 1 when he moved Patient 1 in a manner that caused Patient 1 to hit his head and subsequently placed his knee on Patient 1’s back when he was already on the ground surrounded by multiple security staff members, and when he touched Patient 1’s head using an open palm. He further admits that this conduct was physically abusive.
If the Member were to testify, he would say that Patient 1 had previously presented challenging behaviour, made threatening remarks aimed at the Member, and expressed hopelessness with the potential for self-harm such that the Member was concerned about preventing harm to Patient 1 and others. He would testify that he is remorseful for failing to apply the appropriate techniques during the incident with Patient 1, and that his conduct was not typical of the standard of care he provides patients.
Given the admissions above, the Member admits that he committed the acts of professional misconduct as alleged in paragraph 1 (a) to (c) of the Notice of Hearing, in that he contravened a standard of practice of the profession or failed to meet the standard of practice of the profession, as described in paragraphs 22 – 57 and 67 – 70 above.
The Member admits that he committed the acts of professional misconduct as alleged in 2 (a) to (b) of the Notice of Hearing, in that he physically abused Patient 1, as described in paragraphs 22 – 57 and 67 – 70 above.
The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 3 (a) to (c) of the Notice of Hearing, and in particular he acknowledges that his conduct was disgraceful, dishonourable, and unprofessional, as described in paragraphs 22 – 57 and 67 – 70 above.
Decision
The College bears the onus of proving the allegations in accordance with the standard of proof, that being the balance of probabilities based upon clear, cogent and convincing evidence.
Having considered the evidence and the onus and standard of proof, the Panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1(a), (b)(i), (ii), (c), 2(a), (b), 3(a), (b)(i), (ii) and (c) of the Notice of Hearing. With respect to allegations #2(a) and (b), the Panel finds that the Member physically abused a patient. As to allegations #3(a), (b)(i), (ii) and (c), the Panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession to be disgraceful, dishonourable and unprofessional.
Reasons for Decision
The Panel considered the Agreed Statement of Facts and the Member’s plea and finds that this evidence supports findings of professional misconduct as alleged in the Notice of Hearing.
Allegation #1(a) in the Notice of Hearing is supported by paragraphs 39-41, 61-66 and 67-72 in the Agreed Statement of Facts. Patient 1 was wearing shoes with laces during the Member’s shift and the Member acknowledges that he had opportunities to address the wearing of the shoes with laces by Patient 1, but failed to do so. At the end of the Member’s shift, the Member asked Patient 1 to relinquish the shoes as shoes with laces are not permitted on the Unit. When Patient 1 did not relinquish his shoes, the Member stood over Patient 1 while Patient 1 was seated and spoke to Patient 1 for 15 seconds before physically moving to attempt to remove Patient 1’s shoes off his feet.
The Member stood close to Patient 1 and shook his finger in close proximity to Patient 1’s face. The Member yelled at Patient 1 to “obey” the Member. The College’s Therapeutic Nurse-Client Relationship Standard (“TNCR Standard”) outlines that the nurse meets the standard by “not engaging in behaviours toward a [patient] that may be perceived by the [patient] and/or others to be violent, threatening or intending to inflict physical harm.” Shaking a finger in close proximity to a patient’s face and yelling “obey” while standing over a patient would reasonably be considered to be behaviour that is perceived by the patient as threatening and violent. Furthermore, the College’s Professional Standards provides that “each nurse establishes and maintains respectful, collaborative, therapeutic and professional relationships and a nurse demonstrates this standard by demonstrating respect and empathy for, and interest in patients.” The techniques used by the Member in the de-escalation of Patient 1 demonstrated a lack of respect to Patient 1 and was damaging to the therapeutic relationship. The cumulation of inappropriate techniques used by the Member during the de-escalation would amount to failing to engage in appropriate de-escalation of Patient 1.
Allegations #1(b)(i) and (ii) in the Notice of Hearing are supported by paragraphs 46, 47, 49, 50, 51, 57, 63, 64, 67-70 and 72 in the Agreed Statement of Facts. Three security staff were attempting to secure Patient 1 to the ground. The Member intervened by struggling with Patient 1’s legs and hips which caused the security staff to lose balance resulting in Patient 1 bumping his head on the floor. While Patient 1 was on the floor and the security staff were attempting to handcuff Patient 1, the Member placed his knee in the centre of Patient 1’s back and close to his neck for several seconds. Security staff told the Member to remove his knee. The Member did not remove his knee until one of the security staff pushed the Member’s leg. The Member did not meet the Professional Standards in that he failed to provide the best possible care to Patient 1 by using improper and dangerous techniques during physical restraint of Patient 1.
Allegation #1(c) in the Notice of Hearing is supported by paragraphs 50, 51, 62-64 and 72 in the Agreed Statement of Facts. When Patient 1 was on the ground and was non-combative and no longer resistant, the Member used an open palm to touch the top of Patient 1’s head 5 or 6 times with a degree of force beyond a light tap and less than a smack across the face. The Member’s explanation was that the “taps” or “pats” were to reassure Patient 1 and not to harm him. The TNCR Standard indicates that a nurse meets the standard by “being aware of her/his verbal and non-verbal communication style and how [patients] might perceive It". Although the Panel agrees that from the Member’s perspective, the “taps” or “pats” were an expression of empathy by the Member to make amends with Patient 1 over what had transpired, the “taps” or “pats” could have been interpreted by Patient 1 as hurtful or aggressive, especially since Patient 1 was in a vulnerable position being in a prone position on the ground, handcuffed and surrounded by three security staff. The Member’s non-verbal communication in the form of “taps” or “pats” could have been damaging to the maintenance of the therapeutic nurse client relationship between the Member and Patient 1.
Allegation #2(a) in the Notice of Hearing is supported by paragraphs 47, 49, 63-70, 72 and 73 in the Agreed Statement of Facts. While Patient 1 was on the floor and three security staff were attempting to handcuff Patient 1, the Member placed his knee in the centre of Patient 1’s back and close to his neck for several seconds. Security staff told the Member to remove his knee. The Member did not remove his knee until one of the security staff pushed the Member’s leg. The TNCR Standard indicates that physical abuse includes using force. The Member’s use of force, by applying his knee to Patient 1’s back during the restraining of Patient 1, was physically abusive towards Patient 1. The Member also admitted that his conduct constituted physical abuse of a client (patient).
Allegation #2(b) in the Notice of Hearing is supported by paragraphs 50, 51, 63-66, 72 and 73 in the Agreed Statement of Facts. When Patient 1 was on the ground and was non-combative and no longer resistant, the Member used an open palm to touch the top of Patient 1’s head 5 or 6 times with a degree of force beyond a light tap and less than a smack across the face. The Member’s explanation was that the “taps” or “pats” were to reassure Patient 1 and not to harm him. The TNCR Standard indicates that a nurse meets the standard by “being aware of her/his verbal and non-verbal communication style and how [patients] might perceive it”. Although the Panel agrees that from the Member’s standpoint, the “taps” or “pats” were an expression of empathy by the Member to make amends with Patient 1 over what had transpired, the “taps” or “pats”, given the utilization of the open palm, the frequency of 5-6 times and the degree of forced used, could have reasonably been perceived by Patient 1 as physically abusive. The Member also admitted that this conduct constituted physical abuse of a client (patient).
With respect to allegations #3(a), (b)(i), (ii) and (c), the Panel finds that the Member’s conduct was relevant to the practice of nursing and in failing to address Patient 1’s wearing of the shoes with laces and using threatening communication during a de-escalation, it was unprofessional as it demonstrated a serious disregard for his professional obligations.
The Panel also finds that the Member’s conduct was dishonourable as his inability to deal with a non-compliant and resistive patient in a respectful manner and his use of improper techniques of de-escalation intensified the conflict between himself and Patient 1 resulting in a physical interaction, demonstrating that the Member knew or ought to have known that his conduct was unacceptable, had an element of moral failure, and fell below the standards of a professional.
Finally, the Panel finds that the Member’s conduct was disgraceful as it shames the Member and by extension the profession. The conduct of using physically abusive and dangerous techniques on Patient 1 during the physical restraint casts serious doubt on the Member’s moral fitness and inherent ability to discharge the higher obligations the public expects professionals to meet.
Penalty
College Counsel and the Member’s Counsel advised the Panel that a Joint Submission on Order had been agreed upon. The Joint Submission on Order requests that this Panel make an order as follows:
Requiring the Member to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.
Directing the Executive Director to suspend the Member’s certificate of registration for 4 months. This suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption as long as the Member remains in a practicing class.
Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration:
a) The Member will attend a minimum of 2 meetings with a Regulatory Expert (the “Expert”) at his own expense and within 4 months from the date this Order becomes final. If the Expert determines that a greater number of sessions are required, the Expert will advise the Director of Professional Conduct (the “Director”) regarding the total number of sessions that are required and the length of time required to complete the additional sessions, but in any event, all sessions shall be completed within 4 months from the date that this Order becomes final. To comply, the Member is required to ensure that:
i. The Expert has expertise in nursing regulation and has been approved by the Director of Professional Conduct (the “Director”) in advance of the meetings;
ii. At least 7 days before the first meeting, the Member provides the Expert with a copy of:
the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
if available, a copy of the Panel’s Decision and Reasons;
iii. Before the first meeting, the Member reviews the following CNO publications and completes the associated Reflective Questionnaires, online learning modules, decision tools and online participation forms (where applicable):
Professional Standards,
Therapeutic Nurse-Client Relationship, and
Code of Conduct,
iv. Before the first meeting, the Member reviews and completes the CNO’s self-directed learning package, One is One Too Many, at his own expense, including the self-directed Nurses’ Workbook;
v. At least 7 days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires, online participation forms, and Nurses’ Workbook;
vi. The subject of the sessions with the Expert will include:
the acts or omissions for which the Member was found to have committed professional misconduct,
the potential consequences of the misconduct to the Member’s patients, colleagues, profession and self,
strategies for preventing the misconduct from recurring,
the publications, questionnaires and modules set out above, and
the development of a learning plan in collaboration with the Expert;
vii. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards his/her report to the Director, in which the Expert will confirm:
the dates the Member attended the sessions,
that the Expert received the required documents from the Member,
that the Expert reviewed the required documents and subjects with the Member, and
the Expert’s assessment of the Member’s insight into his behaviour;
viii. If the Member does not comply with any one or more of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on his certificate of registration;
b) For a period of 18 months from the date the Member’s suspension ends, the Member will notify his employers of the decision. To comply, the Member is required to:
i. Ensure that the Director is notified of the name, address, and telephone number of all employer(s) within 14 days of commencing or resuming employment in any nursing position;
ii. Provide his employer(s) with a copy of:
the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
a copy of the Panel’s Decision and Reasons, once available;
iii. Ensure that within 14 days of the commencement or resumption of the Member’s employment in any nursing position, the employer(s) forward(s) a report to the Director, in which it will confirm:
that they received a copy of the required documents, and
that they agree to notify the Director immediately upon receipt of any information that the Member has breached the standards of practice of the profession.
All documents delivered by the Member to the CNO, the Expert or the employer(s) will be delivered by verifiable method, the proof of which the Member will retain.
Penalty Submissions
Submissions were made by College Counsel.
The aggravating factors in this case were that the conduct was quite serious as there was both physical abuse towards a patient and improper techniques used during a restraint. Patient 1 was young and vulnerable given that he was involuntarily placed in a mental health unit. The Member’s response to the shoelaces was quite disproportionate to the safety concern that existed. Patient 1 suffered harm and there was potential for Patient 1 to have suffered further harm from the Member’s conduct.
The mitigating factors in this case were that the Member cooperated with the College by admitting to the allegations and accepting responsibility by entering into an Agreed Statement of Facts and a Joint Submission on Order. The Member’s cooperation avoided a contested hearing. Through the Agreed Statement of Facts, the Member has conveyed his remorse for his conduct. The conduct was not a pattern of conduct but rather involved a single patient over the course of one day. The Member has no prior discipline history with the College.
The proposed penalty provides for general deterrence through the four month suspension which will convey to the membership that members must use appropriate techniques during de-escalation and restraint. It also demonstrates that physical abuse of mental health patients will not be tolerated and illustrates the seriousness of the conduct to the membership.
The proposed penalty provides for specific deterrence through the oral reprimand and the four month suspension which will illustrate to the Member that the conduct was unacceptable.
The proposed penalty provides for remediation and rehabilitation through a minimum of two meetings with a Regulatory Expert. This will allow the Member an opportunity for reflection and insight to clarify his role as a care provider when dealing with aggressive non-compliant patients. The 18 months of employer notification will provide the Member with oversight and vigilance by his employer.
Overall, the public is protected because this penalty maintains the public’s confidence in the profession to regulate the profession of nursing. All the components of the penalty protect the public and are in the public interest.
College Counsel submitted two cases to the Panel to demonstrate that the proposed penalty fell within the range of similar cases from this Discipline Committee.
CNO v. Wreaks (Discipline Committee, 2017): This case involved a member who used excessive force with a patient who was suffering from schizo-affective disorder. The patient was in a mental health unit and the nurse was a mental health nurse. The patient tried to leave the secure unit. The patient did manage to leave through a door that was supposed to be locked. The patient tried again to leave the unit. The member grabbed the patient and pulled the patient to the floor to prevent him from leaving the unit. The member struck the patient in the neck and upper torso area 4-5 times while on the floor. This matter proceeded by way of an Agreed Statement of Fact and a Joint Submission on Order. The panel found that the member abused the patient and that the member’s conduct was disgraceful, dishonourable, and unprofessional. The penalty included an oral reprimand, a 4 month suspension, two meetings with a Nursing Expert and 12 months of employer notification. This case substantiates that a single incident of disproportionate and abusive behaviour towards a mental health patient warrants a significant suspension.
CNO v. Hayden (Discipline Committee, 2018): This case involved a member who was assisting with restraining a patient who was aggressive. The patient had disclosed that he had hepatitis C. The patient spat in the member’s face. The member responded by punching the patient in the right flank with a closed fist. The member then punched the patient twice in the rib cage and the upper torso. This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The penalty included an oral reprimand, a 4 month suspension, two meetings with a Nursing Expert and 12 months of employer notification.
College Counsel submitted that both of these cases deal with a single incident with a difficult patient and the case before this Panel warrants a similar penalty.
Submissions were made by the Member’s Counsel.
General deterrence is supported by the strong signal from the severity of the penalty which includes a 4 month suspension and 18 months of employer notification. There is also an oral reprimand component. The penalty supports general deterrence and reassures that there is a consequence for overstepping one’s bounds as a nurse. The period of suspension is significant and reflects the Member’s accountability for the improper interactions with Patient 1 and for his departure into the role of a security enforcer.
Specific deterrence is supported by the suspension, the employer notification and the oral reprimand. This will deter the member from replicating similar misconduct.
Public protection and remediation are achieved through the oral reprimand, the employer notification and the two meetings with a Regulatory Expert. The two meetings with a Regulatory Expert will be helpful as the Member can reflect on feedback from the Regulatory Expert.
The Member’s Counsel submitted that the two cases presented by College Counsel are applicable to the case before this Panel. The facts of the cases are similar to the case before the Panel in several aspects. In the Wreaks case, there is a similar intention to safeguard the patient and a similar overreaction by the nurse. In the Hayden case, there is a similar “jolt response” by the nurse, however, the Hayden case involved the nurse intending to harm the patient. In both of these cases, there is a similar penalty compared to the case before this Panel. The employer notification in the case before this Panel is longer at 18 months as this is in keeping with assisting the Member to rehabilitate and to have oversight as he returns to practice.
The aggravating factors include the severity of the breach, the assault of a patient, the vulnerability of the patient and the potential of harm to the patient.
The mitigating factors include that the Member has no prior discipline history with the College, this was a single event, the Member has been cooperative and accountable throughout the process and there is no clear intent to harm the patient in this case.
Submissions in response to Panel’s concerns:
The Panel did have concerns with the length of the suspension proposed by the Joint Submission on Order. As such, the Panel provided an opportunity to College Counsel and the Member’s Counsel to address the length of suspension.
College Counsel submitted that the seriousness of the misconduct warrants a suspension of 4 months. The Member failed to de-escalate the circumstances around the shoes and the laces. The Member had many hours during the shift to engage in discussions with Patient 1, but failed to do so. At the end of the shift, the Member engaged in conduct that escalated circumstances. The Member departed from his role as a nurse into the role of a security guard. The Member placed his knee on Patient 1’s back for several seconds. The Member removed his knee after the security staff verbally instructed the Member to remove his knee and further pushed the Member’s leg off of Patient 1’s back. College Counsel submitted that it is very dangerous to place a knee on a patient’s back. The Panel has made the finding that this constituted physical abuse.
College Counsel submitted that the cases presented are somewhat different in their facts from the case before this Panel. The cases involve members who made snap-judgments which is similar to the case before this Panel. However, the case before this Panel did not involve a strike of a closed fist by the Member. College Counsel submitted that the Panel should look at the totality of the Member’s circumstances. The Member exhibited poor judgment during the de-escalation and involving himself in the restraining when security staff were present. College Counsel submitted that in the case before this Panel, there is enough overlap in the range of the conduct with the Wreaks and Hayden cases.
The Member’s Counsel submitted that the Supreme Court of Canada has said that when it comes to Joint Submissions on Order, that tribunals such as the College’s Discipline Committee should not depart from the proposed sentence unless it would bring the administration of justice into disrepute or be contrary to the public interest. It is a very high bar that has to be met to raise or lower any element of a Joint Submission on Order. The Member’s Counsel submitted that there is similarity in the Wreaks case to the case before this Panel in that there was a snap-judgment, there was intention of protecting the patient, the patients both had mental health issues and were vulnerable and there was an overreach. The overreach was severe enough to cause harm to the patient.
Penalty Decision
The Panel accepts the Joint Submission on Order and accordingly orders:
The Member is required to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.
The Executive Director is directed to suspend the Member’s certificate of registration for 4 months. This suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption as long as the Member remains in a practicing class.
The Executive Director is directed to impose the following terms, conditions and limitations on the Member’s certificate of registration:
a) The Member will attend a minimum of 2 meetings with a Regulatory Expert (the “Expert”) at his own expense and within 4 months from the date this Order becomes final. If the Expert determines that a greater number of sessions are required, the Expert will advise the Director of Professional Conduct (the “Director”) regarding the total number of sessions that are required and the length of time required to complete the additional sessions, but in any event, all sessions shall be completed within 4 months from the date that this Order becomes final. To comply, the Member is required to ensure that:
i. The Expert has expertise in nursing regulation and has been approved by the Director of Professional Conduct (the “Director”) in advance of the meetings;
ii. At least 7 days before the first meeting, the Member provides the Expert with a copy of:
the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
if available, a copy of the Panel’s Decision and Reasons;
iii. Before the first meeting, the Member reviews the following CNO publications and completes the associated Reflective Questionnaires, online learning modules, decision tools and online participation forms (where applicable):
Professional Standards,
Therapeutic Nurse-Client Relationship, and
Code of Conduct,
iv. Before the first meeting, the Member reviews and completes the CNO’s self-directed learning package, One is One Too Many, at his own expense, including the self-directed Nurses’ Workbook;
v. At least 7 days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires, online participation forms, and Nurses’ Workbook;
vi. The subject of the sessions with the Expert will include:
the acts or omissions for which the Member was found to have committed professional misconduct,
the potential consequences of the misconduct to the Member’s patients, colleagues, profession and self,
strategies for preventing the misconduct from recurring,
the publications, questionnaires and modules set out above, and
the development of a learning plan in collaboration with the Expert;
vii. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards his/her report to the Director, in which the Expert will confirm:
the dates the Member attended the sessions,
that the Expert received the required documents from the Member,
that the Expert reviewed the required documents and subjects with the Member, and
the Expert’s assessment of the Member’s insight into his behaviour;
viii. If the Member does not comply with any one or more of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on his certificate of registration;
b) For a period of 18 months from the date the Member’s suspension ends, the Member will notify his employers of the decision. To comply, the Member is required to:
i. Ensure that the Director is notified of the name, address, and telephone number of all employer(s) within 14 days of commencing or resuming employment in any nursing position;
ii. Provide his employer(s) with a copy of:
the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
a copy of the Panel’s Decision and Reasons, once available;
iii. Ensure that within 14 days of the commencement or resumption of the Member’s employment in any nursing position, the employer(s) forward(s) a report to the Director, in which it will confirm:
that they received a copy of the required documents, and
that they agree to notify the Director immediately upon receipt of any information that the Member has breached the standards of practice of the profession.
All documents delivered by the Member to the CNO, the Expert or the employer(s) will be delivered by verifiable method, the proof of which the Member will retain.
Reasons for Penalty Decision
The Panel understands that the penalty ordered should protect the public and enhance public confidence in the ability of the College to regulate nurses. This is achieved through a penalty that addresses specific deterrence, general deterrence and, where appropriate, rehabilitation and remediation. The Panel also seriously considered the penalty in light of the principle that joint submissions should not be interfered with lightly. In that regard, the Panel found that there was sufficient overlap between the case before this Panel and the Wreaks and Hayden cases to justify that the Panel should not deviate from the Joint Submission on Order.
The Panel concluded that the proposed penalty is reasonable and in the public interest. The Member has co-operated with the College and, by agreeing to the facts and a proposed penalty, has accepted responsibility. The Panel finds that the penalty satisfies the principles of specific and general deterrence, rehabilitation and remediation, and public protection. Specific deterrence is met though the oral reprimand and the 4 month suspension which will deter the Member from committing similar misconduct in his future practice. Remediation and rehabilitation are met through the oral reprimand, the two meetings with a Regulatory Expert, and the 18 months of employer notification which will aid the Member in learning through reflection in order to prevent similar occurrences in his future practice. General deterrence is met through the 4 month suspension as the membership will be reminded that a significant penalty accompanies physical abuse of a patient. The public is protected as the Member will return to the nursing profession having learned from his misconduct and will also be subject to 18 months of heightened vigilance of his practice by his employer.
The penalty is in line with what has been ordered in previous cases.
I, Carly Gilchrist, RPN sign this decision and reasons for the decision as Chairperson of this Discipline panel and on behalf of the members of the Discipline panel.